Separation of Powers Quiz

Separation of Powers (SoP)

• The core principle of SoP is that governmental power should be divided among distinct branches to prevent any single entity from accumulating excessive power.
• Three branches: Executive, Judicial, and Legislative.
• Each branch needs cooperation from the others, forming a system of checks and balances.
• Gridlock can occur if branches disagree and block each other's actions (stalemate).
• A strong executive (e.g., PM, Ministers, civil servants) often holds significant power, including financial resources (taxes).
• A lack of SoP can be seen as a sign of potential dictatorship (e.g., Turkey).

SoP and Montesquieu

• Montesquieu, a French nobleman, established a well-known version of SoP, proposing that power should be checked by power to avoid tyranny.
• He saw a monarchy as a stable executive, promoting continuity.
• Montesquieu emphasized the danger of individuals holding multiple branch powers.
• His work, The Spirit of the Laws, is a crucial text for understanding this system.

Aspects and Characteristics of the SoP

• Functional Separation: Each branch should perform only its assigned functions, avoiding overlap.
• Personnel Separation: Individuals should not belong to more than one branch, though overlap occurs in practice.
• Checks and Balances: One branch can scrutinize and hold another accountable.

SoP in the UK

• The UK's SoP is not complete; overlaps, especially between executive and legislative branches, exist.
• Ministers need to be MPs.
• The key question is whether the UK has a sufficient SoP to prevent abuse of power.
• The UK has a less significant SoP than some other countries.

Constitutional Relationships and Overlaps

• The relationships between branches involve overlaps in areas like lawmaking.
• Examples include Legislature & Judiciary, Executive & Legislature, and Executive & Judiciary, analyzed in relation to the UK's functioning.

SoP and the Judiciary

• The judiciary is the least dangerous branch due to its passivity and reliance on others for cases.
• Judges must be independent to ensure fairness and enforce the rule of law.
• Judges create precedent despite not being exclusively responsible for lawmaking, needing parliament's laws.
• Tension exists between a judge's role as an interpreter of law and their lawmaking through precedent.

Relationships between Branches (Parliament and Judiciary)

• Conflicts can arise between Parliament and the judiciary.
  • Examples including Shaw v DPP, R v Brown, Hamilton v Al Fayed highlight these conflicts. Issues such as ouster clauses and parliamentary privilege can create friction.
• Both make laws (lack of functional separation), with Parliament's authority being absolute in relation to the court system.

Relationships between Branches (Executive and Judiciary)

• Executive and Judiciary also show overlapping functions and powers that overlap, primarily from the executive being able to make judgements.
• Ex parte Fire Brigades Union, Abbassi, and R (CND) v Prime Minister demonstrate the division of power in this branch.
• Judicial review can check executive decisions, but key prerogative powers (e.g., treaty making, defense) often aren't reviewed.

Judicial/Public Inquiries

• Public inquiries (e.g., Chilcot, Hutton) scrutinize actions of the executive, examining decision-making processes.

Human Rights Act (1998)

• The HRA (1998) impacts the SoP, particularly with respect to judicial interpretations and parliament's supreme authority.
• Section 3 preserves parliamentary supremacy.
• Section 4 restricts judicial interpretative powers.
• Section 6 expands judicial review scope.

Constitutional Reform (2005)

• The Constitutional Reform Act (2005) reformed the Lord Chancellor's role and created the Supreme Court.
• The Lord Chancellor was a prominent example of SoP violations; held multiple positions simultaneously. This reform greatly reduced the overlap in this position.
  • Now the Lord Chancellor is a normal minister.

Supreme Court

• Established to reduce the overlaps between the judiciary and legislature.
• The Supreme Court replaced the Law Lords, significantly improving SoP by separating the judicial and political branches of the UK government.

Checks and Balances: Continued

• The executive is advised by the PM to dissolve Parliament.
• Executive must resign if losing parliamentary support.
• Executive makes judicial appointments.
• Executive decisions and functions may be scrutinised by the court system.
• Courts, through rule of law, check Parliament (statutory interpretation).